White v. State

Court of Appeals of Georgia, Third Division

May 30, 2018

EARNEST RAY WHITEv.THE STATE.

ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
PHIPPS

Bethel, Judge.

Earnest
Ray White began serving a life sentence in 1996 following his
conviction for aggravated assault, burglary, and
kidnapping.[1] He has consistently maintained his
innocence, and in 2015 sought to re-open his case pursuant to
OCGA § 5-5-41 (c), which provides those convicted of
felony offenses with the ability to request DNA testing of
evidence if, among a number of other factors, the identity of
the perpetrator of the offense was at issue at trial. Because
an improper legal standard was applied below, we vacate the
order of the trial court and remand the case for further
proceedings.

OCGA
§ 5-5-41 (c) (1) provides that, subject to provisions
regarding extraordinary motions for new trials, "a
person convicted of a felony may file a written motion before
the trial court that entered the judgment of conviction in
his or her case for the performance of forensic [DNA]
testing." OCGA § 5-5-41 (c) (3) and (4) further
provide that such motion must be verified by the petitioner
and must show or provide a number of items of information
regarding the evidence to be tested, including its location,
who possesses it, and the results of any other DNA testing
conducted by either the petitioner or the State during the
original prosecution of the case. Assuming the petitioner
complies with the filing requirements set forth in OCGA
§ 5-5-41 (c) (3) and (4), the trial court is required to
hold a hearing on the motion. OCGA § 5-5-41 (c) (6). If
the petitioner satisfies the filing requirements and
persuades the judge that there is a reasonable probability
that the trial verdict would have been different if the
results of the requested DNA testing had been available at
the time of trial and indicated the presence of a third
person, the petitioner's motion is to be granted where
each of the following requirements have been established:

(A) The evidence to be tested is available and in a condition
that would permit the DNA testing requested in the motion;

(B) The evidence to be tested has been subject to a chain of
custody sufficient to establish that it has not been
substituted, tampered with, replaced, or altered in any
material respect;

(C) The evidence was not tested previously or, if tested
previously, the requested DNA test would provide results that
are reasonably more discriminating or probative of the
identity of the perpetrator than prior test results;

(D) The motion is not made for the purpose of delay;

(E) The identity of the perpetrator of the crime was a
significant issue in the case;

(F) The testing requested employs a scientific method that
has reached a scientific state of verifiable certainty such
that the procedure rests upon the laws of nature; and

(G) The petitioner has made a prima facie showing that the
evidence sought to be tested is material to the issue of the
petitioner's identity as the perpetrator of, or
accomplice to, the crime, aggravating circumstance, or
similar transaction that resulted in the conviction.

OCGA § 5-5-41 (c) (7).

In this
case, the trial court determined that the item of evidence
White sought to test-workout pants worn by the victim during
the incident giving rise to this case-had been stored for
nearly 20 years in a warehouse with no temperature or
humidity control. The trial court also noted testimony from a
forensic expert that heat, humidity, and light generally have
a deleterious effect on biological specimens. Based on that
evidence, the trial court concluded that there was a
substantial likelihood that the biological specimens, namely
epithelial skin cells presumed to be located on the pants,
had been materially altered by the effects of light, heat,
and humidity, such that the requested testing would no longer
meet the standards set forth in OCGA § 5-5-41 (c). The
trial court thus ruled that White had failed to establish the
factors set forth in OCGA § 5-5-41 (c) (7) (A) and (B)
and denied his petition for DNA testing.

Following
the denial of his motion for reconsideration by the trial
court, White filed an application for discretionary review,
...

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